Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD07-3377
RUVOLO, P. J.
Appellant Veronica U. (Mother) challenges the termination of her parental rights as to her son Levi U. (Minor) on the grounds that the dependency court failed to ensure that proper notice had been given under the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq.) (ICWA); abused its discretion in denying Mother’s counsel’s motion for a continuance of the hearing due to Mother’s failure to appear; and erred in finding that Minor is adoptable. We reject these contentions, and affirm.
facts and procedural background
Minor was born in February 2003. In December 2007, when Minor was four years old, Mother voluntarily surrendered him at a police station, because she was homeless and had substance abuse and mental health problems, and could not care for him. The Family and Children’s Services Division of the San Francisco Human Services Agency (the Agency) filed an original dependency petition on December 11, 2007. Minor was ordered detained, and placed in foster care.
Minor’s alleged father could not be located, and did not participate in the dependency proceedings. He is not a party to this appeal.
Mother lost contact with the Agency temporarily, so reunification services were not provided to her initially. Minor was placed with a foster family that was open to adopting him. On March 31, 2008, however, Mother indicated an interest in receiving reunification services, and the Agency’s next interim review report, filed in May 2008, recommended that they be provided to her. At that time, Mother was confined to a rehabilitation hospital due to injuries she had received in a fall or jump in March 2008. However, she had managed to complete a substance abuse assessment.
Meanwhile, Minor remained in foster care. He had exhibited some behavioral problems in the home in which he was initially placed. After being moved to a different home, Minor appeared to be doing well, though he still had some behavior problems, and there was some concern about whether he had a speech/language delay. As of April 2008, Minor was maintaining contact with Mother via supervised telephone calls, and the Agency planned to have him visit with her in person at the rehabilitation hospital.
On July 10, 2008, however, the Agency filed an application to reduce Mother’s visitation time with Minor. The social worker reported that Minor’s therapist had been requesting the reduction since late May, because “the current therapeutic visits have triggered a ‘flood of traumatic memories’ for [Minor, then five years old], which he is manifesting with abusive-reactive behavior, ” and had caused him to “start[] acting out... in ways he had not done before visits began.” In addition, Mother’s behavior during telephone calls and visits had been inappropriate, she had left the hospital, and her whereabouts were unknown. On July 14, 2008, the court ordered Mother’s visits reduced to one hour a week, if the Agency could locate her, and suspended if she missed the next scheduled visits.
The Agency’s next report, dated July 31, 2008, indicated that on July 9, 2008, Mother had left the residential treatment program in which she had supposedly been enrolled earlier that day, resulting in a missed visit, which distressed Minor considerably; her whereabouts were still unknown; and she was not receiving visitation or reunification services. Meanwhile, Minor had been moved to a different foster home due to his behavior problems. The Agency recommended that Mother receive six more months of reunifications services, but “remain[ed] concerned about [her] history, her resistance to participating in services, and her capacity to parent....”
By September 2008, the Agency reported that Minor was adjusting well in his new foster home, and doing well in kindergarten. He had not asked about Mother, who had renewed contact with the Agency by telephone, but had failed to show up for a meeting two days later at which the social worker planned to discuss visitation and reunification. At this point, the Agency recommended that reunification services be terminated due to Mother’s failure to participate. The agency had located a possible adoptive parent, suggested by Mother, who had already adopted Minor’s older half-sibling. At the next hearing, on September 25, 2008, the court ordered that Mother continue to be denied visitation.
The half-sibling had not had any contact with Minor, and they did not have an ongoing sibling relationship. After two visits from Minor, the half-sibling’s adoptive parents decided against adopting him.
Another hearing was held on November 14, 2008. When Mother appeared in court, the social worker met with her and her counsel to discuss reunification and referrals for services. Mother and her companion were in a hurry to leave, however, so the social worker set up a further meeting with mother six days later. Mother did not appear for that meeting, and did not call to cancel or reschedule it.
As of late January 2009, Mother still had not met with the Agency, and had been out of contact except for sporadic phone calls, in which she reported that she remained homeless. She had not seen Minor since late June 2008, and had not engaged in any of the reunification services offered to her, with the exception of a psychological evaluation. Minor had also undergone a psychological evaluation, and had been diagnosed with posttraumatic stress disorder (PTSD), reactive attachment disorder, and attention deficit hyperactive disorder (ADHD). Nonetheless, with visitation suspended, Minor continued to do well in his new foster home, and was responding positively to psychotherapy. The Agency recommended that the court terminate reunification services and set a hearing under Welfare and Institutions Code section 366.26, with a view to selecting adoption as Minor’s permanent plan.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
On May 27, 2009, the court set the section 366.26 hearing for September 30, 2009. The Agency’s report for that hearing, which was filed on September 17, 2009, indicated that minor was still in the foster home where he had been since late July 2008; was attending first grade; and was adoptable, although his current foster parents had decided not to adopt him “due to personal considerations and family circumstances.” Minor was still in therapy, but an evaluation had determined that he did not require psychotropic medication.
At the time the section 366.26 hearing was set, Mother still had not resumed contact with the Agency, and the Agency did not know where she was. The section 366.26 hearing was continued, but as of early December 2009, the Agency still could not locate Mother. Finally, Mother was located at an address in Fairfield, California, where she had apparently moved, and on February 4, 2010, the Agency personally served her with a notice that the section 366.26 hearing had been set for April 7, 2010.
In its addendum report filed on April 5, 2010, for the rescheduled section 366.26 hearing, the Agency reported that it had found a potential adoptive home for Minor with two kindergarten teachers. Minor had visited the prospective adoptive parents several times, including a weekend visit during which he spent the night at their house as well as a week-long spring vacation visit that was in progress at the time, and was “adjusting very well and getting very comfortable” with them. The Agency’s plan, with which the current foster parents and the prospective adoptive parents agreed, was to move Minor to the new home in June 2010, after the end of the school year. Meanwhile, Mother had reappeared on the scene by calling the Agency just before Minor’s birthday to express a desire to get a recent photograph of him and send him a birthday gift. The Agency sent her some photographs, but she never followed up on delivering the gift.
Mother was not present for the hearing on April 7, 2010, and her failure to appear was deemed willful. The section 366.26 hearing was continued to April 29, 2010. Mother did not appear in court on that date either, and her counsel requested another continuance. Mother’s counsel explained that Mother had been asking the Agency for assistance in getting to court from the Vacaville area, and that Mother had called the previous day and left a message saying that she would be at the hearing because the Agency was going to provide her with transportation. That morning, however, counsel learned that there had been a misunderstanding, and the Agency was not providing Mother with transportation. Counsel had not been able to reach Mother that morning to discuss the issue. The social worker, Tommie Pazhempallil, explained that Mother had told him in their last telephone conversation that she was not sure whether she needed to attend the hearing. Pazhempallil reported that he responded by advising Mother to speak with her attorney about that issue. Mother told Pazhempallil she would call back to let Pazhempallil know whether she planned to be in court, but did not do so. The trial judge declined to continue the matter, noting that Mother had been properly noticed for the hearing.
The report prepared in September 2009 and the subsequent addendum report were entered into evidence, and Mother’s counsel cross-examined Pazhempallil. Pazhempallil reported that the prospective adoptive parents had completed a home study, and it had been approved. He also testified that Minor’s initial behavior problems had “subsided to a great extent” and that Minor was “adjusting well in the foster placement.” Minor’s diagnoses of reactive attachment disorder, PTSD, and ADHD had been disclosed to the prospective adoptive parents, as had his history of three different foster home placements. Minor had visited the prospective adoptive parents four times, with the longest visit being a week long. They were prepared to adopt him, but he had not yet gone to live with them because they wanted him to remain in his current school until the end of the school year.
After the section 366.26 hearing, the court entered an order finding that there was clear and convincing evidence that it was likely Minor would be adopted, and terminating Mother’s parental rights. This timely appeal followed.
discussion
ICWA Notice
In February 2008, Mother filed a JV-130 form indicating that she and Minor had some Indian ancestry, specifically Cherokee. Mother acknowledged, however, that neither she nor her father, through whom she traced her Indian ancestry, was a member of any Indian tribe. On March 20, 2008, the Agency sent notice to the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians, as well as the Bureau of Indian Affairs (BIA). On March 31, 2008, the Cherokee Nation responded that the Minor was not an Indian child, and on April 2, 2008, the BIA responded that it had not been provided with sufficient information to make a determination in that regard. The record does not reflect any response to the notice by either of the Cherokee Bands.
As of July 2008, the Agency’s report stated that ICWA did not apply, but in February 2009, the section of the report dealing with the ICWA status of the case was modified to reflect that verification still had not been received from either of the two Cherokee Bands. By the time the section 366.26 report was filed in mid-September 2009, however, the Agency once again took the position that ICWA did not apply. The dependency court never made an express finding as to whether or not Minor was an Indian child within the meaning of ICWA.
Mother contends that the dependency court’s order terminating her parental rights must be reversed because the court did not first take adequate steps to ensure that ICWA did not apply. The Agency argues that Mother’s averments as to her and Minor’s Indian ancestry were not sufficient to trigger ICWA’s notice requirements, and in the alternative, that the dependency court substantially complied with ICWA’s requirements.
We question the Agency’s argument that notice was not required, given the breadth of the notice requirement codified in section 224.3, subdivision (b)(1). We need not decide this question, however, because ICWA notices were sent, and Mother does not argue that they were inadequate. The questions we need to decide are: (1) whether reversal is warranted based on the Agency’s failure to send additional notices of subsequent hearings to the two Cherokee Bands after they failed to respond to the initial notice; and (2) whether reversal (or at least remand) is warranted based on the dependency court’s failure to make an express finding that ICWA did not apply.
Sections 224.2 and 224.3 (discussed post) were enacted in 2006, effective January 1, 2007, as part of a general revision of the provisions of the Welfare and Institutions Code pertaining to the requirements of ICWA. Under the resulting statutory scheme, the obligation to give ICWA notice in California is broader than that imposed by federal statutory law. (See generally In re Skyler H. (2010) 186 Cal.App.4th 1411, 1421-1428; In re Damian C. (2009) 178 Cal.App.4th 192, 196-199; In re Alice M. (2008) 161 Cal.App.4th 1189, 1198-1202.) As relevant here, subdivision (b) of section 224.3 provides that “The circumstances that may provide reason to know [a dependent] child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child... provides information suggesting... one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (Italics added.) Here, the information provided by Mother at least suggested that one of Minor’s great-grandparents (that is, one of Mother’s paternal grandparents) was a member of a Cherokee tribe.
The answer to the first question has been provided for us by the Legislature. Section 224.3, subdivision (e)(3) provides that “[i]f proper and adequate notice has been provided pursuant to [s]ection 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that [ICWA] does not apply to the proceedings....” Under this statute, once 60 days had passed after the ICWA notices were sent on March 20, 2008, the Cherokee Bands’ failure to respond absolved the Agency and the dependency court of any obligation to notify them of further proceedings, or to continue to hold open the possibility that Minor was an Indian child. Thus, at least by the end of May 2008, the dependency court was entitled to proceed without giving further ICWA notices, and to determine that Minor was not an Indian child.
Given that conclusion, we also have no difficulty rejecting Mother’s argument that we must reverse or remand due to the dependency court’s failure to make an express finding that Minor is not an Indian child. As support for that proposition, Mother relies on In re Robert A. (2007) 147 Cal.App.4th 982. In that case, however, no ICWA notice was ever sent, even though the dependent minor’s father told the social services agency that “his grandfather was a ‘full-blooded Cherokee’ Indian.” (Id. at p. 985.) Thus, In re Robert A. does not stand for the proposition that reversal or remand is required whenever the dependency court fails to make an express finding of ICWA inapplicability, even if ICWA notice has been sent to all relevant tribes, and none has responded positively. Nor has Mother persuaded us that this rule should be adopted.
Rather, we agree with the courts that have concluded that a dependency court need not make an express finding that ICWA does not apply, as long as proper notice was given, and an implied finding of inapplicability is evident from, and supported by, the record. (See In re E.W. (2009) 170 Cal.App.4th 396, 403-405; In re Levi U. (2000) 78 Cal.App.4th 191, 199 [involving a different Levi U.].) Accordingly, we conclude that the absence of an express ICWA finding here does not require us to reverse the order terminating Mother’s parental rights, or to remand for proceedings that, as the current record makes clear, could have only one possible outcome.
Denial of Continuance
Mother contends that the dependency court abused its discretion in denying a continuance due to her failure to appear at the section 366.26 hearing. Continuances in dependency proceedings are discouraged, and we reverse an order denying a continuance only for abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) Here, we are not convinced that the trial court abused its discretion, given Mother’s history of failure to participate in the dependency proceedings; the length of time that they had been pending; and the fact that the section 366.26 hearing had already been continued once, even though Mother’s failure to appear was found to have been willful.
Even if we were to conclude that the dependency court should have continued the hearing, however, any error was unquestionably harmless. Mother relinquished Minor voluntarily to begin with, and never requested that he be returned to her care, or even that her visitation be restored after it was terminated. By the time the section 366.26 hearing was held, Mother had not had any contact with Minor for almost two years. She had taken little, if any, advantage of the reunification services offered to her, and had been out of contact with the Agency altogether during much of the course of the dependency proceedings. Mother’s briefs on appeal do not explain what she could have said or done, had she been present at the section 366.26 hearing, that would have had any reasonable probability of affecting the outcome. Accordingly, the denial of a continuance, even if error, was harmless. (D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 513-514.)
Minor’s Adoptability
“ ‘The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]’ [Citations.] We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)
In this case, Mother contends that the evidence of Minor’s adoptability was not clear and convincing due to his history of behavioral problems, his psychological diagnoses, and the conclusory nature of the adoption assessment in the Agency’s section 366.26 reports. Mother stresses that Minor had to be removed from his first two foster homes due to severe behavioral problems.
Mother’s picture of the facts ignores the evidence that Minor’s behavioral problems emerged during the period when she was participating in visitation with him, and diminished considerably after her visitation was terminated. By the time of the section 366.26 hearing, Minor had been in his third foster home for almost two years (late July 2008 to late April 2010), and was doing well there. In September 2008, his foster mother reported to the Agency that Minor was well-behaved and manageable.
In addition, by the time of the section 366.26 hearing, Minor had spent an entire week with prospective adoptive parents, who had been informed of his history and his psychological diagnoses, and they remained interested in adopting him after the visit. “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, original italics omitted.)
In short, substantial evidence supports the dependency court’s finding of clear and convincing evidence of adoptability. We are not persuaded by Mother’s arguments to the contrary based on the asserted insufficiency of the Agency’s section 366.26 reports.
disposition
The order terminating Mother’s parental rights is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.